Lessons from Monday Night Mooting
by Colin MacMillan ('07)

After mooting a few of you tonight, I have a few additional thoughts for you and it seems like you weren’t given much direction on the flow of the proceedings.

THE FLOW

Stating Your Appearance
If the Judges ask you to state your appearance, simply stand up where you are (no need to go to the podium) and say something like:

“Good evening your honors, my name is Jesse Fu, counsel for the Petitioner Marie Dosman.”

“Good evening your honors, my name is Reggie Bush, counsel for the Respondent Maneely Enterprises.”

The Arguments
After this the Petitioner should approach the podium and wait to be acknowledged by the judges and begin by saying:

o “Good evening your honors, Jesse Fu for the Petitioner Marie Dosman.”

o “At this time I would like to reserve one minute for rebuttal” [Wait for your request to be granted by the judges, and then begin your argument.]

o “This evening I will argue that the trial court erred in sustaining a demurrer…” [or whatever]

After the Petitioner has left the podium, the Respondent should approach the podium and wait to be acknowledged by the judges, then begin your argument by stating:

o “Good evening your honors, Reggie Bush for the Respondent, Maneely Enterprises. The issue in this case is …”

Ending Your Argument
When you see the zero card held up, and before you run back to your seat, you need to gracefully end your argument. Think of it as a conversation with the judges. Most people don’t just end a conversation by walking away, and there are a few things you should say so that you at least look like you know what you are doing. Here’s my advice for what to do when your time expires when:

You are speaking – Finish your thought, don’t just stop speaking mid sentence or even mid thought. You may need to abbreviate your point, and limit yourself to a sentence or two, but make sure that it is a coherent statement. Then go into the Short Conclusion below.

If you are answering a question – Finish answering the judge’s question and say, “Your Honors, I see our time has expired…[see Short Conclusion below]."

If a judge is asking a question – When the judge has finished asking the question, say, “Your Honors, I see our time has expired, I will answer your question and briefly conclude.” Don’t bother asking permission, because it creates an awkward situation because they will always grant your request. Feel free to answer the question fully, and even turn it in to an argument point if it’s a logical transition, but don’t get too far away from the original question.

If there is silence – Say, “Your Honors, I see our time has expired, [see Short Conclusion below]."

SHORT CONCLUSION: You should have a one to two sentence conclusion memorized that should be used after you acknowledge that your time has expired. It should go something like this for the Petitioner, “Your Honors, I see our time has expired. The Petitioner urges this court to overrule the action of the trial court and find that Ms. Dosman was closely related to Mr. Cosack either under a theory of exceptional circumstances, or in the alternative by logically finding that step children are close family relatives. Thank you, Your Honors.”

Rebuttal
When the Respondent is done arguing, the Petitioner should approach the podium and wait to be acknowledged by the judges. Some people like to start their rebuttal with something like, “By way of rebuttal, the Petitioner would like to …” I personally don’t like that language. You are obviously the Petitioner and you are obviously on rebuttal. Since it is only a minute long, I liked to just start by saying “Your Honors…[and then jumping right into my attack of the other side, clarifying a point or two (max), or summarizing my theory of the case]. I would memorize or adlib the rebuttal and always end by making direct eye contact with the judges and saying, “Thank you, your Honors.”

On rare occasions, you may get asked a question on rebuttal. Just go with it and if there is time try to get back to your original point. If not see the section above on Ending your Argument.

ADVICE

Formality
Adding a degree of formality to your language, tone and mannerisms will go a long way in conveying a sense of confidence and presence in the court room. The graders seemed interested in this.

Cases

Since you are graded this year, be sure to distinguish or analogize between the facts of the main cases (Moon, Thing, Rodriguez, Eldon etc). Your Fellow and most likely Prof will want to see some command of those cases and the ability to base some of your legal arguments on them.

Petitioners – Talk about the trajectory of the case law, and don’t be afraid to make strong public policy arguments that favor your side. Also, pepper your arguments with favorable facts from the case.

Respondents – The existing case law is in your favor. Don’t be afraid to use it and argue that based on same your client was entitled to the Demurrer as a matter of law.

Hand Motions

Just grab the podium with both hands and don’t let go until you are done…this will solve that problem.

Rebuttal

We were asked if the Petitioner is required to do one. The official answer is no, but the graders seem to be looking for it, so do it.

Responding to Questions

Every time you answer a question, begin by saying, “Your Honor…” It may sound redundant to you, but it will go along way with the judges.

Ending Early

We were asked if there was ever a time that you should end early. Again the official answer is that it is up to you, and again the graders would mostly likely wonder why you couldn’t find more to talk about, so keep talking.

Silence

We heard a lot of silence tonight. If the judges stop answering questions, you should immediately have something in mind to talk about. That’s were the development of the Roadmap can be helpful part of your preparation. Or, better yet, develop a few talking points, as outlined in my original post, in order to keep the conversation flowing and give yourself the chance to speak intelligently on something you’ve prepared.

Don’t worry about this too much, since there will be a whopping total of 5 judges at your rounds next week. In all likelihood you probably didn’t spend that much time preparing for the practice round, and you will know how to do this much better by next week.

Keep Arguing

Stay composed and keep talking about the case. Even if the judges are going after you or have you cornered, don’t worry about it, argue back or move on. Remember it’s not all about the merits of the case, and you will be given significant style points for transitioning gracefully out of a tight spot.

Try to get mooted once or twice before next week and you’ll start to feel more comfortable with the process and your arguments.

Roadmap: A few people have asked about the infamous Roadmap. Click here for a sample. See my original post for my thoughts on its use.

Good luck!

THE ART OF MOOT
by Colin MacMillan ('07)

As usual, Mr. Bleweiss did an excellent job describing the 1L Moot Court ("MC") rounds, so I will mainly give you my perspective as a participant. Keep in mind that I have no idea how you are being graded for your writing class and these are just my thoughts at succeeding in MC. I think the only change that has been made since he wrote the original blog entry is that in your qualifying rounds (the second time you argue) there will be five judges (3 from MC, 1 Writing Fellow, and your writing Prof.).

RANKING THE HONORS PROGRAMS

By now you have probably caught on to the fact that the ranking process for the honors programs is much like the mysterious black box of the 1L curve. You will never find out how you were scored for MC or the write on. There is some strategy as to how you rank the programs, since you will be invited to participate in the program that you ranked the highest and that you qualify for, assuming it is not already full. Keep in mind that if your preferences change (i.e. during the write on), you do have a short period of time to email Kyle Jones with an updated list.

THE PRESTIGE FACTOR: Since conventional wisdom says that Law Review is the most prestigious program, the question for many 1Ls is whether MC is more prestigious than the other two journals. My take is that it is probably a wash, but you might get more mileage out of MC if you make at least one cut.

I personally ranked MC first, but I did the write on as insurance. I thought MC would be more interesting and practical. Blue booking and cite checking did not sound appealing to me, but props to everyone who just finished their notes.

MOOT COURT ADVICE

MC is what it is…a game. It is not decided on the merits of the case, but rather the subjective criteria of the judges – whoever they happen to be. My advice is to view it as a game, and play along.

STYLE: If the instructions you are given are anything like the ones we received, you will quickly be turned into a Moot Court robot – try to avoid that. You will be most effective playing the game with your own style. To get to USC you must have been doing something right, so just keep that up.

• I found that a very informal/conversational style worked best for me. I viewed oral arguments as a time to chat with the judges about the case and fill them in on my perspective.
  

THEORY: I found it helpful to develop a theory/theme for the case I was arguing in order to set the tone for the judges. If you can, try to tell a story through your opening and subsequent arguments, such that at the end of your round the Judges will be able to summarize your position back to you in a sentence or two.

THE GAME: The game is to try to tell your story of the case while thoughtfully but strategically answering the judges’ questions. Keep in mind that questions from MC judges (especially in the 1L rounds) are probably not the result of thoughtful preparation, but rather an attempt to trip you up, a question just for the sake of asking a question, or possibly a means of clarifying a point that is unclear in the case.

• Cases - You know this case better than most of us judging you for MC. I will be judging some of you in less than five days and I have yet to receive any information on the case. How much prep do you think your 2L judges will be doing over the weekend? That said, you will have 2 judges in the qualifying round (your writing Prof. and Fellow) who will know the cases better than you, so it will be a bit different from the practice round and you will need to have a solid command of the leading cases.

TO SUCCEED AT THE GAME:

• Confidence – Even if you don’t know what you’re talking about, pretend that you do, or quickly get to something you do know about. The ability to project confidence will go a long way even if you don’t feel like you have (or can recall) the most ingenious arguments.

• Composure – Don’t let yourself get flustered. Try to keep a consistent composure throughout. Most MC cases will have compelling arguments on both sides. Play along with the judges’ questions. Don’t be afraid to concede small points in order to deflect tough questions, but don’t give away the store.

• Strength of Argument – This is listed last because I think it can often take a subordinated role in MC evaluation. Since the cases are written with equality of arguments in mind, scores often come down to the delivery and not the content. That said, creative arguments can often score you easy points and save you from some tough questions. But be careful that your arguments are not too complicated or attenuated such that the judges get confused and take you off topic. Try to keep them fact specific – just using the facts in creative new ways.

THE ROADMAP: You will hear from most people that you should make a MC roadmap, and I think you should as well, but mostly for the process of organizing and articulating your thoughts. Chances are that you won’t use it much, if at all, during oral arguments, but constantly revising my roadmap was my main preparation for oral arguments.

• Use Notes & Annotations – I would caution you against writing out the roadmap word for word, and rather just list your key points and key phrases to trigger your memory so that you engage in a conversation with the judges and not a lecture

• Introduction – Some people say to memorize it. Some say you don’t need to. I memorized a couple of quick sentences in order to make a good first impression on the judges, but you don’t have to.

TALKING POINTS: I found it helpful to develop 3 – 4 interesting thoughts about the case that the judges probably won’t pick up on. At times these were only tangentially related, but they were designed to direct attention away from a particularly difficult line of questioning from the Judges or to make me appear articulate and knowledgeable about the case while running out the clock on stuff I felt comfortable talking about.

REBUTTAL: This will be different every time. Don’t be afraid to point out weaknesses or contradictions in your opponent’s argument. If the judges cornered the other side into making concessions that are quite favorable to your position, don’t hesitate to highlight them in your rebuttal.

I never had a scripted rebuttal – I just made notes while the other side was arguing and tried to pick up on the direction that the judges were headed or any opportunities presented by my opponents’ arguments. If you are at a loss for what to say, put yourself in the shoes of the judges – after the case is argued, they would have to go back and make an actual decision. With this in mind, unless it directly related to a concession made by my opponent, I found the most success in keeping my rebuttals broad since at that point the judges would be in the mindset of summing up the case.

NEXT YEAR...

If you are selected for MC, you will have a busy fall, but you do get 3 units out of it. You are basically on your own to research and write an appellate brief (it’s back!), which for us was conveniently due during OCI. You do have a MC Board member as your editor, but like your writing profs, they don’t want to give any particular person an advantage. Our record was very well written and contained most of the information we needed for the brief, so there wasn’t too much outside research necessary. The brief will also count as your upper division writing requirement.

ARGUMENTS: There are two practice rounds. The first round is “On Brief,” where you argue the side of the case that you wrote your brief on. The second round is “Off Brief,” where you argue the other side. There are two preliminary rounds that are structured the same way, which take place a week or two after the practice rounds. All 40 participants are required to argue in the practice and preliminary rounds. The judges are usually local attorneys and alums, so the questions are usually predictable and very factually based.

SECOND SEMESTER: After the two preliminary rounds, the field is cut to 16 participants for the Quarterfinal Round, 8 for the Semifinal Round, and 4 for the Final Round. The oral arguments (as opposed to the briefs) increase in weight for advancement purposes. I think the arguments are weighted 67% to get to the quarterfinal round, 75% to get to the semifinal round, 90% to get to the final round. The MC champion is selected solely based on oral arguments in the final round.

IN SUM

Try to get mooted a couple of times – the MC Board or participants are always willing to help, just let us know. 10 minutes will fly by, and you’ll only get to half of what you’ve prepared. Stay calm and focus on the strengths of your case. Remember it’s all moot!

Colin MacMillan was a Finalist in the Hale Moot Court Honors Competition this year. Feel free to contact Colin with any questions at cmacmillan@sbcglobal.net